Comment on rule addressing DEI discrimination (Office of Management and Budget)

Public Rights Project and San Francisco opposed the federal government’s attempt to insert broad-sweeping anti-diversity, equity, and inclusion (DEI) terms and conditions into federal contracts. We filed a comment on behalf of 10 local government officials.

A March executive order requires federal contracts to include broad anti-DEI clauses. The order defines “racially discriminatory DEI activities” on the flawed and unsupported assumption that absent DEI initiatives, merit alone drives employment decisions and outcomes.
Our comment opposes the “information collection” process, which forces contractors and subcontractors to hand over records so the government can check their compliance. We argue that the regulation serves no real purpose and creates significant challenges, including:

• Putting contracts at risk: Many DEI programs are legal, but it’s unclear what the administration means by “racially discriminatory.” This vagueness could lead to contracts being wrongly terminated.
• Wasting resources: Because the rule is so vague and imposes new obligations to scrutinize subcontractors’ activities without clear guidance on what counts as a violation, local governments will need to devote significant resources towards compliance. This inefficient use of resources will divert from the purpose of many of these contracts, which is to provide the public with much-needed services.
• Violating federal laws: The administration’s unclear definition places a significant burden on contractors, and it violates several federal laws, including the Paperwork Reduction Act.

Evidence shows that DEI programs reduce obstacles to true merit-based employment practices. These programs actually contribute to successful, efficient, and collaborative workplaces, and, ultimately, drive innovation and economic growth. The coalition is urging the administration to follow the law and rescind this regulation.

Read the comment.